8-K

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of report (Date of earliest event reported): August 22, 2005

ACTION PERFORMANCE
COMPANIES, INC.

(Exact Name of Registrant as Specified in its Charter)

Arizona	0-21630	86-0704792
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

1480 South Hohokam Drive, Tempe, Arizona	85281
(Address of Principal Executive Office)	(Zip Code)

(602) 337-3700

(Registrant’s telephone number, including area code)

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

TABLE OF CONTENTS

	Item 1.01. Entry Into a Material Definitive Agreement
	Item 5.03 Amendments to Articles of Incorporation or Bylaws; Changes in Fiscal Year
	Item 9.01. Financial Statements and Exhibits
SIGNATURES
EX-3.1
EX-10.1

Item 1.01. Entry Into a Material Definitive Agreement

     As previously disclosed, on July 28, 2005 Herbert M. Baum was appointed Executive Chairman of the Company. On August 2, 2005 the Compensation Committee of the Board of Directors approved the terms of Mr. Baum’s compensation arrangements and agreed to enter into an Employment Agreement with Mr. Baum effective August 15, 2005. Mr. Baum and the Company finalized and executed the Employment Agreement on August 22, 2005, the date on which the Board approved Amended and Restated Bylaws creating the position of Executive Chairman. Pursuant to the Employment Agreement, Mr. Baum will receive an annual base salary of $180,000. In addition, Mr. Baum will receive an option to acquire 100,000 shares of Action Performance common stock. The Employment Agreement provides for severance payments to Mr. Baum in the event he terminates his employment for good reason (as defined in the Employment Agreement), is terminated by the Company without cause (as defined in the Employment Agreement) or upon certain termination events following a change of control (as defined in the Employment Agreement).

     The description of the Employment Agreement with Herbert Baum is not complete and is qualified in its entirety by the full text of such document, which is filed as Exhibit 10.1, and incorporated by reference herein.

     The stock award made to Mr. Baum is being made under an exemption to the shareholder approval requirements of the NYSE relative to awards granted to newly hired officers or employees.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Changes in Fiscal Year

     As noted above, on August 22, 2005, the Board of Directors amended and restated Action Performance’s bylaws. The bylaws were amended to create the officer position of Executive Chairman and to clarify the authority of various officer positions.

     A copy of the Bylaws is attached to this Form 8-K as Exhibit 3.1.

Item 9.01. Financial Statements and Exhibits

(c)	Exhibits
3.1	Amended and Restated Bylaws of Action Performance Companies, Inc.
10.1	Employment Agreement between Herbert M. Baum and Action Performance Companies, Inc.

SIGNATURES

     Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Dated: August 25, 2005
	ACTION PERFORMANCE COMPANIES, INC.
	/s/	David M. Riddiford
	By:	David M. Riddiford
		Chief Financial Officer, Secretary and Treasurer

EX-3.1

Exhibit 3.1

THIRD AMENDED AND RESTATED BYLAWS

OF

ACTION PERFORMANCE COMPANIES, INC.

an Arizona corporation

Dated August 22, 2005

TABLE OF CONTENTS

		Page
ARTICLE I
Offices
Section 1.01	Principal Office		1
Section 1.02	Other Offices		1
ARTICLE II
Meetings of Shareholders
Section 2.01	Annual Meeting		1
Section 2.02	Special Meetings		1
Section 2.03	Notice and Purpose of Meetings; Waiver		1
Section 2.04	Quorum; Manner of Acting and Adjournment		2
Section 2.05	Record Date		2
Section 2.06	Presiding Officer; Order of Business		3
Section 2.07	Voting		3
Section 2.08	Voting Lists		3
Section 2.09	Participation in Shareholders’ Meeting		4
Section 2.10	Consent of Shareholders in Lieu of Meeting		4
ARTICLE III
Board of Directors
Section 3.01	Powers		4
Section 3.02	Number and Term of Office		5
Section 3.03	Qualification and Election		5
Section 3.04	Presiding Officer		5
Section 3.05	Resignations		6
Section 3.06	Vacancies		6
Section 3.07	Removal		6
Section 3.08	Place of Meeting		6
Section 3.09	Regular Meeting		7
Section 3.10	Special Meetings		7
Section 3.11	Quorum, Manner of Acting, Adjournment, and Action Without Meeting		7
Section 3.12	Committees		7
Section 3.13	Compensation		8
Section 3.14	Dividends		8
Section 3.15	Minutes		9
Section 3.16	Notice		9
ARTICLE IV
Notice — Waivers
Section 4.01	Notice, What Constitutes		9
Section 4.02	Waiver of Notice		9

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TABLE OF CONTENTS
(continued)

		Page
ARTICLE V
Officers
Section 5.01	Number, Qualifications and Designation		9
Section 5.02	Election and Term of Office		9
Section 5.03	Subordinate Officers		9
Section 5.04	Resignations		10
Section 5.05	Removal		10
Section 5.06	Vacancies		10
Section 5.07	General Powers		10
Section 5.08	The Chair and Vice Chair of the Board		10
Section 5.09	The Executive Chairman		10
Section 5.10	The Chief Executive Officer; President		10
Section 5.11	The Vice Presidents		11
Section 5.12	The Secretary		11
Section 5.13	The Treasurer		11
Section 5.14	Officers’ Bonds		11
Section 5.15	Salaries		11
ARTICLE VI
Stock
Section 6.01	Issuance		12
Section 6.02	Shares Without Certificates		12
Section 6.03	Subscriptions for Shares		12
Section 6.04	Transfers		12
Section 6.05	Share Certificates; Share Record Books		12
Section 6.06	Lost, Destroyed, Mutilated or Stolen Certificates		13
Section 6.07	Transfer Agent and Registrar		13
ARTICLE VII
Miscellaneous
Section 7.01	Corporate Seal		13
Section 7.02	Checks		13
Section 7.03	Contracts		13
Section 7.04	Deposits		13
Section 7.05	Financial Statements		13
Section 7.06	Corporate Records		14
Section 7.07	Voting Securities Held by the Corporation		16
Section 7.08	Amendment of Bylaws		16

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SECOND AMENDED AND RESTATED BYLAWS

OF

ACTION PERFORMANCE COMPANIES, INC.

ARTICLE I

Offices

     Section 1.01 Principal Office. The principal office of the Corporation in the State of Arizona shall be located in Maricopa County, Arizona or at such other location as may be established by the board of directors.

     Section 1.02 Other Offices. The Corporation also may have offices at other places within or without the State of Arizona.

ARTICLE II

Meetings of Shareholders

     Section 2.01 Annual Meeting. The board of directors may determine the place, date and time of the annual meetings of the shareholders, but it no such place, date and time is fixed, the meeting for any calendar year shall be held at the Corporation’s known place of business at 10:00 a.m. on the first Tuesday in March of each year. If that day is not a “Business day” (as that term is defined in the Arizona Business Corporation Act, as amended from time to time (the “BCA”)), the meeting shall be held on the next succeeding Business day. At that meeting the shareholders entitled to vote shall elect such directors and transact such business as may properly be brought before the meeting.

     Section 2.02 Special Meetings. Special meetings of the shareholders of the Corporation may be called at any time by the executive chairman, the secretary, two or more directors, or the holders of not fewer than one-tenth (1/10) of all the shares entitled to vote at the meeting, unless otherwise prohibited by Section 10-2703 of the Arizona Revised Statutes, as it may be amended from time to time, or by law.

     Section 2.03 Notice and Purpose of Meetings; Waiver.

     (a) Written notice stating the data, time and place of meetings and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than sixty (60) days before the date of the meeting, either personally or by mail, by an officer of the Corporation at the direction of the person or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when mailed to the shareholder at the shareholder’s address as it appears on the stock transfer books of the Corporation.

     (b) A shareholder may waive any notice required by the BCA, the articles of incorporation of these bylaws before or after the date and time stated in the notice. The waiver shall be in writing, signed by the shareholder entitled to the notice and delivered to the Corporation for inclusion in the minutes or filing with the corporate records. A shareholder’s attendance at or participation in a meeting (i) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting; or (ii) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented.

     Section 2.04 Quorum; Manner of Acting and Adjournment.

     (a) Shares entitled to vote as a separate voting group may take action on a matter at a meeting of shareholders only if the quorum of those shares exists with respect to that matter. Unless otherwise provided by law or the articles of incorporation, a majority of the votes entitled to be cast on the matter by the voting group constitutes a quorum of that voting group for action on that matter. Unless otherwise provided in the articles of incorporation or these bylaws, once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. If a quorum exists, action on a matter, other than the election of directors, by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the articles of incorporation or the BCA require a greater number of affirmative votes.

     (b) Absent special circumstances, the shares of the Corporation are not entitled to vote if they are owned directly or indirectly by a second corporation, domestic or foreign, and the Corporation owns directly or indirectly a majority of the shares entitled to vote for directors of the second corporation. This section does not limit the power of the Corporation to vote any shares, including its own shares, held by it in a fiduciary capacity.

     (c) The affirmative vote of the holders of a majority of the shares then present is sufficient in all cases to adjourn a meeting to another date, time and place. Notice need not be given of the adjourned meeting if the date, time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than one hundred twenty (120) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

     Section 2.05 Record Date.

     (a) In order that the Corporation may determine the shareholders entitled to notice of a shareholders’ meeting, to demand a special meeting, to vote or to take any other action, the board of directors may fix a future date as the record date, which may not be more than seventy (70) days before the meeting or action requiring a determination of shareholders. If not otherwise fixed, the record date for determining shareholders entitled to notice of and to vote

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at an annual or special shareholders’ meeting is the day before the effective date of the first notice to shareholders.

     (b) A determination of shareholders entitled to notice of or to vote at a shareholders’ meeting is effective for any adjournment of the meeting unless the board of directors fixes a new record date, which it shall do if the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting.

     Section 2.06 Presiding Officer; Order of Business. Meetings of the shareholders shall be presided over by the chair of the board of directors, if there be one, or if the chair is not present, by the vice chair of the board of directors, if there be one, or if the vice chair is not present, by the executive chairman, or if the executive chairman is not present, by the president, or if the president is not present, by a vice president in the order designated by the board of directors, or if the vice president is not present, by a chair to be chosen by a majority of the shareholders entitled to vote at the meeting who are present in person or by proxy. The secretary of the Corporation, or, in the secretary’s absence, an assistant secretary, shall act as secretary of every meeting, but if neither the secretary nor an assistant secretary is present, the presiding officer shall choose any person present to act as recording secretary of the meeting.

     Section 2.07 Voting.

     (a) Except with respect to the election of directors, each shareholder of record (except the holder of shares that have been called for redemption and with respect to which an irrevocable deposit of funds sufficient to redeem such shares has been made) shall have the right, at every shareholders’ meeting, to one (1) vote for every share, and to a corresponding fraction of a vote with respect to every fractional share, of stock of the Corporation standing in his or her name on the books of the Corporation, subject, however, to any provisions respecting voting rights as may be contained in the articles of incorporation or any amendments thereto.

     (b) Every shareholder entitled to vote at a meeting of shareholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him or her by proxy. Every proxy shall be executed in writing by the shareholder or by his or her duly authorized attorney-in-fact and shall be filed with the secretary or an assistant secretary of the Corporation before the taking of any vote on the issue as to which the proxy intends to act.

     Section 2.08 Voting Lists.

     (a) After fixing a record date for a meeting, the Corporation shall prepare an alphabetical list of the names of all of its shareholders who are entitled to notice of a shareholders’ meeting. The list shall be arranged by voting group, and within each voting group by class or series of shares, and shall show the address of and number of shares held by each shareholder.

     (b) The shareholders’ list shall he available for inspection by any shareholder, beginning two (2) business days after notice of the meeting is given for which the list was prepared and continuing through the meeting, at the Corporation’s principal office, the office of the Corporation’s transfer agent if specified in the meeting notice or at another place identified in

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the meeting notice in the city where the meeting will be held. A shareholder, its agent or its attorney on written demand may inspect and, subject to the requirements of Section 10-1602 of the BCA, may copy the list, during regular business hours and at its expense, during the period it is available for inspection.

     (c) The Corporation shall make the shareholders’ list available at the meeting, and any shareholder, its agent or its attorney may inspect the list at any time during the meeting or any adjournment.

     (d) Refusal or failure to prepare or make available the shareholders’ list does not effect the validity of action taken at the meeting.

     Section 2.09 Participation in Shareholders’ Meeting. Unless the articles of incorporation or these bylaws provide otherwise, the board of directors may permit any or all shareholders to participate in an annual or special shareholders’ meeting by or conduct the meeting through use of any means of communication by which all shareholders participating may simultaneously hear each other during the meeting. If the board of directors in its sole discretion elects to permit participation by such means of communication, the notice of the meeting shall specify how a shareholder may participate in the meeting by such means of communication. The participation may be limited by the board of directors in its sole discretion to specified locations or means of communications. A shareholder participating in a meeting by this means is deemed to be present in person at the meeting.

     Section 2.10 Consent of Shareholders in Lieu of Meeting. Action required or permitted by law to be taken at a shareholder’s meeting may be taken without a meeting if the action is taken by all of the shareholders entitled to vote on the action. The action must be evidenced by one or more written consents describing the action taken, signed by all of the shareholders entitled to vote on the action and delivered to the Corporation for inclusion in the minutes or filing with the corporate records. A consent signed under this section has the effect of a meeting vote.

     If not otherwise fixed in accordance with Section 2.05 hereof or by law, the record date for determining shareholders entitled to take action without a meeting is the date the first shareholder signs the consent. Unless otherwise specified in the consent or consents, the action is effective on the date that the last shareholder signs the consent or consents. Any shareholder may revoke its consent by delivering a signed revocation of the consent to the executive chairman, president or secretary before the date that the last shareholder signs the consent or consents.

ARTICLE III

Board of Directors

     Section 3.01 Powers. The Corporation shall have a board of directors, which shall have full power to conduct, manage, and direct the business and affairs of the Corporation, except as specifically reserved or granted to the shareholders or otherwise limited by law, the

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articles of incorporation, these bylaws or an agreement authorized under Section 10-732 of the BCA.

     Section 3.02 Number and Term of Office. The board of directors shall consist of such number of directors, not fewer than one (1) nor more than nine (9) as may be determined from time to time by resolution of the board of directors. Except as hereinafter provided, directors shall be elected at the annual meeting of the shareholders and each director shall serve until his or her successor shall be elected and qualified, or until his or her earlier resignation or removal.

     Section 3.03 Qualification and Election.

     (a) All directors of the Corporation shall be natural persons of at least 18 years of age, and need not be residents of Arizona or shareholders of the Corporation, unless the articles of incorporation provide otherwise. Except in the case of vacancies, directors shall be elected by the shareholders. Upon the demand of any shareholder at any meeting of shareholders for the election of directors, the chair of the meeting shall call for and shall afford a reasonable opportunity for the making of nominations for the office of director. If the board of directors is classified with respect to the power of shareholders and/or voting groups to elect directors or with respect to the terms of directors and if, due to a vacancy or vacancies or otherwise, directors of more than one class are to be elected, each class of directors to be elected at the meeting shall be nominated and elected separately. Any shareholder may nominate as many persons for the office of director as there are positions to be filled. If nominations for the office of director have been called for as herein provided, only candidates who have been nominated in accordance herewith shall be eligible for election.

     (b) At each election for directors every shareholder entitled to vote at such election shall have the right to vote, in person or by proxy, the number of shares owned by the shareholder for as many persons as there are directors to be elected and for whose election the shareholder has a right to vote, or to cumulate the shareholder’s votes by giving one candidate as many votes as the number of such directors multiplied by the number of the shareholder’s shares shall equal, or by distributing such votes on the same principle among any number of such candidates. The candidates receiving the highest number of votes from each class or group of classes entitled to elect directors separately up to the number of directors to be elected in the same election by such class or group of classes shall be elected.

     Section 3.04 Presiding Officer. Meetings of the board of directors shall be presided over by the chair of the board, if there be one, or if the chair is not present, by the vice chair of the board, if there be one, or if the vice chair is not present, by the executive chairman, or if the executive chairman is not present, by the president, or if the president is not present, by a vice president, in the order designated by the board of directors, or if the vice president is not present, by a chair to be chosen by a majority of the board of directors at the meeting. The secretary of the corporation, or, in the secretary’s absence, an assistant secretary, shall act as secretary of every meeting, but if neither the secretary nor an assistant secretary is present, the chair of the meeting shall choose any person present to act as recording secretary of the meeting.

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     Section 3.05 Resignations. Any director of the Corporation may resign at any time by giving written notice to the board of directors or its chair, or to the executive chairman, chairman of the board or secretary of the Corporation. Such resignation shall be effective when it is delivered unless the notice specifies a later effective date or event. The acceptance of a resignation shall not be necessary to make it effective.

     Section 3.06 Vacancies.

     (a) Unless the articles of incorporation provide otherwise, if a vacancy occurs on the board of directors, including a vacancy resulting from an increase in the number of directors, either the shareholders may fill the vacancy or the board of directors may fill the vacancy. If the directors remaining in office constitute fewer than a quorum of the board, they may fill the vacancy by the affirmative vote of a majority of all of the directors remaining in office. Except, however, if the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group are entitled to vote to fill the vacancy if it is filled by the shareholders.

     (b) A vacancy that will occur at a specific later date by reason of a resignation effective at a later date may be filled before the vacancy occurs. However, the new director may not take office until the vacancy occurs.

     (c) If at any time by reason of death or resignation or other cause, the Corporation has no directors in office, any officer or any shareholder may call a special meeting of shareholders.

     Section 3.07 Removal.

     (a) The shareholders may remove one or more directors with or without cause unless the articles of incorporation provide that directors may be removed only for cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove the director. If less than the entire board is to be removed, a director shall not be removed if the number of votes sufficient to elect the director under cumulative voting is voted against the director’s removal.

     (b) A director may be removed by the shareholders only at a meeting, and the meeting notice shall state that the purpose or one of the purposes of the meeting is removal of the director.

     Section 3.08 Place of Meeting.

     (a) The board of directors may hold its meetings within or without the State of Arizona at such place or places as the board of directors may from time to time appoint, or as may be designated in the notice calling the meeting.

     (b) Meetings may be held by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can simultaneously hear each other during the meeting, and participation in such a meeting shall constitute presence in person at such meeting.

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     Section 3.09 Regular Meeting. Within thirty (30) days after each annual election of directors or other meeting at which the entire board of directors is elected, the newly elected board of directors shall meet for the purpose of organization, for the election of such officers as they wish to consider at the time and for the transaction of any other business. Other regular meetings of the board of directors shall be held at such times and places as shall be designated from time to time by resolution of the board of directors. If the date fixed for any regular meeting is a legal holiday under the laws of the place where such meeting is to be held, then the meeting shall be held on the next succeeding business day, or at such other time as may be determined by resolution of the board of directors. At regular meetings, the directors shall transact such business as may properly be brought before the meeting. Notice of regular meetings need not be given.

     Section 3.10 Special Meetings. Special meetings of the board of directors shall be held whenever called by the chair of the board, the executive chairman or two or more of the directors. Notice of each such meeting shall be given to each director by telephone or to writing at least twenty-four (24) hours (in the case of notice by telephone) or forty-eight (48) hours (in the case of notice by telegram) or three (3) days (in the case of notice by mail) before the time at which the meeting is to be held. Every such notice shall state the date, time and place of the meeting, but need not describe the purpose of the meeting unless required by the articles of incorporation, these bylaws or provided by law.

     Section 3.11 Quorum, Manner of Acting, Adjournment, and Action Without Meeting. A majority of the directors in office immediately before the meeting begins shall constitute a quorum for the transaction of business. Except as otherwise specified in the articles of incorporation or these bylaws or provided by law, the acts of a majority of the directors present at a meeting at which a quorum is present shall be the acts of the board of directors. The directors shall act only as a board and the individual directors shall have no power as such, provided, however, that any action that may be taken at a meeting of the board or of a committee may be taken without a meeting if all directors or committee members, as the case may be, consent thereto in writing. Such consent shall have the same effect as a unanimous meeting vote, and is effective when the last director signs the consent, unless the consent specifies a different effective date.

     Section 3.12 Committees.

     (a) The board of directors may create one or more committees and may appoint members of the board of directors to serve on them. Each committee member shall serve at the pleasure of the board of directors. The creation of committees, the designation of authority of committees, the dissolution of committees and the appointment and removal of members of committees shall be approved by the greater of (i) a majority of all of the directors in office when the action is taken and (ii) a majority of the directors present at a meeting at which a quorum is present. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent member at any meeting of the committee.

     (b) Except as otherwise provided in this Section, each committee shall have and exercise all or any of the authority of the board of directors in the management of the business and affairs of the Corporation, as provided in a resolution of the board of directors.

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     (c) No committee of the board of directors shall have the authority of the board of directors with respect to:

(i) Authorizing distributions;

(ii) Approving or submitting to shareholders any action that requires shareholder approval;

(iii) Filling vacancies on the board of directors or on any of its committees;

(iv) Amending the articles of incorporation;

(v) Adopting, amending or repealing bylaws;

(vi) Approving a plan of merger not requiring shareholder approval;

(vii) Authorizing or approving reacquisition of the Corporation’s shares, except according to a formula or method prescribed by the board of directors;

(viii) Authorizing or approving the issuance, sale or contract for sale of shares or determining the designation and relative rights, preferences and limitations of a class or series of shares, except according to a formula or method specifically prescribed by the board of directors; or

(ix) Fixing the compensation of directors for serving on the board of directors or on any committee of the board of directors.

     (d) Sections 3.08, 3.10, 3.11 and 3.13 shall be applicable to committees of the board of directors.

     Section 3.13 Compensation. Directors, and member of any committee of the board of directors, shall be entitled to such reasonable compensation for their services as directors and members of any such committee as may be fixed from time to time by resolution of the board of directors, and also shall be entitled to reimbursement for any reasonable expenses incurred in attending such meetings. Any director or member of any committee of the board of directors receiving compensation under these provisions shall not be barred from serving the Corporation in any other capacity and receiving reasonable compensation for such other services.

     Section 3.14 Dividends. Except as limited by law and the articles of incorporation, the board of directors shall have full power to determine whether any, and, if so, what part, of the funds legally available for the payment of dividends shall be declared in dividends and paid to the shareholders of the Corporation. The board of directors may fix a sum that may be set aside for working capital or as a reserve for any proper purpose, and from time to time may increase, diminish or vary such fund.

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     Section 3.15 Minutes. The Corporation shall keep minutes of the proceedings of its board of directors and committees thereof;

     Section 3.16 Notice. A director may waive any notice required by the BCA, the articles of incorporation or these bylaws before or after the date and time stated in the Notice. Except as described below, the waiver shall be in writing, signed by the director entitled to notice and filed with the minutes or corporate records. A director’s attendance at or participation in a meeting waives any required notice to him or her of the meeting unless the director at the beginning of the meeting or promptly on his or her arrival objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.

ARTICLE IV

Notice — Waivers

     Section 4.01 Notice, What Constitutes. Whenever any written notice to any person is required by the articles of incorporation, these bylaws, or law, it may be given to such person either personally or by sending a copy thereof through the mail to his or her address appearing on the books of the Corporation, or supplied by him or her to the Corporation for the purpose of notice. If the notice is sent by mail it shall be deemed to have been given to the person entitled thereto when deposited in the United States mail.

     Section 4.02 Waiver of Notice. Whenever any notice is required to be given to any shareholder or director by the articles of incorporation, these bylaws, or law, a waiver of notice in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. Written waivers shall be placed with the minutes of the meeting or in the corporate records.

ARTICLE V

Officers

     Section 5.01 Number, Qualifications and Designation. The officers of the Corporation shall be as designated by resolution of the board of directors. Any two or more offices may be held by the same person. Officers may, but need not, be directors or shareholders of the Corporation. The board of directors may elect from among the members of the board a chair of the board and a vice chair of the board, who shall be considered officers of the Corporation unless the board specifically determines otherwise at the time of election.

     Section 5.02 Election and Term of Office. The officers of the Corporation, except those elected by delegated authority pursuant to Section 5.03 hereof, shall be elected by the board of directors, and each such officer shall hold office until such officer’s successor shall have been duly elected and qualified, or until such officer’s death, resignation or removal. Election or appointment of an officer shall not itself create contract rights.

     Section 5.03 Subordinate Officers. The board of directors from time to time may elect such other officers as the business of the Corporation may require, including, without

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limitation, one or more vice presidents, one or more assistant secretaries and one or more assistant treasurers, each of whom shall hold office for such period, have such authority and perform such duties as are provided in these bylaws, or as the board of directors from time to time may determine. The directors may delegate to any officer or committee the power to elect subordinate officers.

     Section 5.04 Resignations. An officer may resign at any time by delivering written notice to the board of directors, or to the executive chairman, president or the secretary of the Corporation. Any resignation shall be effective when the notice is delivered, unless the notice specifies a later effective date or event. If a resignation is made effective at a later date or event and the Corporation accepts the future effective date, the board of directors may fill the pending vacancy before the effective date if the board of directors provides that the successor does not take office until the effective date.

     Section 5.05 Removal. Any officer of the Corporation may be removed by the board of directors with or without cause. Such removal shall not affect the contract rights, if any, of the person so removed.

     Section 5.06 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled by the board of directors or by the officer or committee to which the power to fill such office has been delegated pursuant to Section 5.03 hereof, as the case may be.

     Section 5.07 General Powers. All officers of the Corporation, as between themselves and the Corporation, shall have such authority and perform such duties in the management of the Corporation as may be provided in these bylaws, or as may be determined by resolution of directors not inconsistent with these bylaws.

     Section 5.08 The Chair and Vice Chair of the Board. The chair of the board, or in the chair’s absence, the vice chair of the board, shall preside at all meetings of the shareholders and the board of directors, and shall perform such other duties as may from time to time be requested by the board of directors.

     Section 5.09 The Executive Chairman. The executive chairman shall report directly to the board of directors, shall be responsible for the overall operation of the Corporation, and shall perform such other duties as from time to time may be assigned by the board of directors. The executive chairman shall have the authority to sign, execute, and acknowledge, in the name of the Corporation, deeds, mortgages, bonds, contracts or other proper instruments, except in cases where the board of directors or these bylaws delegate to, or authorize the signing and execution thereof by, some other officer or agent of the Corporation.

     Section 5.10 The Chief Executive Officer; President.

     (a) The board of directors may designate a chief executive officer who shall perform such duties as from time to time may be requested by the board of directors. The chief executive officer shall report to the executive chairman.

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     (b) The president shall report directly to the executive chairman and shall have general supervision over the business and operations of the Corporation with respect to driver and team relationships, track relationships and other NASCAR relations, provided that the president shall report to the executive chairman regarding any material financial commitments or other material contractual arrangements. Subject to the foregoing, the president shall have the authority to sign, execute, and acknowledge, in the name of the Corporation, deeds, mortgages, bonds, contracts or other proper instruments, except in cases where the board of directors or these bylaws delegate to, or authorize the signing and execution thereof by, some other officer or agent of the Corporation. In general, the president shall perform all duties incident to the office of the president, and such other duties as from time to time may be assigned by the board of directors or the executive chairman.

     Section 5.11 The Vice Presidents. Vice presidents shall perform all duties incident to the office of vice president and such other duties as from time to time may be assigned to them by the board of directors or the executive chairman. The vice presidents, in the order designated by the board of directors, shall perform the duties of the president in the president’s absence or disability. Notwithstanding the foregoing, those individuals who are appointed vice president of a certain area or department, such as vice president of marketing, shall perform only those duties incident to such area or department, and such other duties as from time to time may be assigned to them by the board of directors or the president.

     Section 5.12 The Secretary. The secretary or an assistant secretary shall, to the extent possible, (a) attend all meetings of the shareholders and the board of directors, (b) record all the votes of the shareholders and the directors and prepare the minutes of the meetings of the shareholders, the board of directors and committees of the board in a book or books to be kept for that purpose, (c) see that notices are given and records and reports are properly kept and filed by the Corporation as required by law, (d) authenticate records of the Corporation, and, in general, (e) perform all duties incident to the office of secretary, and such other duties as from time to time may be assigned by the board of directors or the executive chairman.

     Section 5.13 The Treasurer. The treasurer or an assistant treasurer shall (a) have or provide for the custody of the funds or other property of the Corporation and keep a separate book account of the same, (b) collect and receive or provide for the collection and receipts of monies earned by or in any manner due to or received by the Corporation, (c) deposit all funds in his or her custody as treasurer in such banks or other places of deposit as the board of directors from time to time may designate, (d) whenever so required by the board of directors, render an accounting showing his or her transactions as treasurer and the financial condition of the Corporation, and, (e) in general, (f) discharge such other duties as from time to time may be assigned by the board of directors or the executive chairman.

     Section 5.14 Officers’ Bonds. Any officer shall give a bond for the faithful discharge of such officer’s duties in such sum, if any, and with such surety or sureties, as the board of directors shall require.

     Section 5.15 Salaries. The salaries of the officers elected by the board of directors may be fixed from time to time by the board of directors or by such officer as may be designated by resolution of the board. The salaries or other compensation of any other officers,

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employees and other agents may be fixed from time to time by the officer or committee to which the power to elect such officers or to retain or appoint such employees or other agents has been delegated pursuant to Section 5.03 hereof. No officer shall be prevented from receiving such salary or other compensation by reason of the fact that such officer also is a director of the Corporation.

ARTICLE VI

Stock

     Section 6.01 Issuance. The interest of each shareholder of the Corporation may be evidenced, but need not be represented, by certificates for shares of stock. All share certificates of the Corporation shall be signed either manually or in facsimile by one or more officers of the Corporation designated in the articles of incorporation or by the board of directors, and may bear the corporate seal, which may be a facsimile, engraved or printed. If a person who signed either manually or in facsimile a share certificate no longer holds office when the certificate is issued, the certificate is nonetheless valid.

     Section 6.02 Shares Without Certificates. Unless the articles of incorporation or these bylaws provide otherwise, the board of directors of the Corporation may authorize the issuance of some or all of the shares of any or all of its classes or series without certificates. Notwithstanding such authorization by the board of directors, every holder of uncertificated shares is entitled to receive a certificate that complies with the requirements in the BCA, on request to the Corporation. The authorization does not affect shares already represented by certificates until such certificates are surrendered to the Corporation.

     Section 6.03 Subscriptions for Shares. The board of directors may determine the payment terms of subscriptions of shares, unless the subscription agreement specifies them. Any call made by the board of directors for payment on subscriptions shall be uniform as far as practicable as to all shares of the same class or series, unless the subscription agreement specifies otherwise. A subscription for shares, whether entered into before or after incorporation, is not enforceable unless it is in writing and signed by the party to be charged or its agent.

     Section 6.04 Transfers. Transfers of shares of stock of the Corporation by the registered owner thereof, or by his or her duly authorized attorney, shall be made on the books of the Corporation on surrender of the certificate or certificates, if any, for such shares properly endorsed and with all taxes thereon paid. No transfer shall be made that is inconsistent with the provisions of the Uniform Commercial Code as adopted in Arizona.

     Section 6.05 Share Certificates; Share Record Books. Certificates for shares of the Corporation, if any, shall be in such form as provided by law and approved by the board of directors. The share record books and the blank share certificate books shall be kept by the secretary or by any agency designated by the board of directors for that purpose. The Corporation or an agent shall maintain a record of its shareholders in a form that permits preparation of a list of the names and addresses of all shareholders and in alphabetical order by class of shares showing the number and class of shares held by each. Every certificate

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exchanged or returned to the Corporation shall be marked “Cancelled,” with the date of cancellation.

     Section 6.06 Lost, Destroyed, Mutilated or Stolen Certificates. The holder of any certificates representing shares of stock of the Corporation shall immediately notify the Corporation of any lost, destruction, mutilation or theft of the certificate therefor, and the board of directors may, in its discretion, cause a new certificate or certificates to be issued to such holder in case of mutilation of the certificate, upon the surrender of the mutilated certificate, or, in case of loss, destruction or theft of the certificate, upon satisfactory proof of such loss, destruction or theft, and, if the board of directors shall so determine, the submission of a properly executed lost security affidavit and indemnity agreement, or the deposit of a bond in such form and in such sum, and with such surety or sureties, as the board of directors may direct.

     Section 6.07 Transfer Agent and Registrar. The board of directors may appoint one or more transfer agents or transfer clerks and one or more registrars, and may require all certificates for shares to bear the signature or signatures of any of them.

ARTICLE VII

Miscellaneous

     Section 7.01 Corporate Seal. The Corporation may have a corporate seal in the form of a circle containing the name of the Corporation, the year of incorporation and such other details as may be approved by the board of directors. Nothing in these bylaws shall require the impression of a corporate seal to establish the validity of any document executed on behalf of the Corporation.

     Section 7.02 Checks. All checks, notes, bills of exchange or other orders in writing shall be signed by such person or persons as the board of directors from time to time may designate.

     Section 7.03 Contracts. The board of directors may authorize any officer or officers, agent or agents to enter into any contract or to execute or deliver any instrument on behalf of the Corporation, and such authority may be general or confined to specific instances.

     Section 7.04 Deposits. All funds of the Corporation shall be deposited from time to time to the credit of the Corporation in such banks, trust companies, or other depositories as the board of directors may approve or designate, and all such funds shall be withdrawn only upon checks signed by such one or more officers or employees as the board of directors from time to time shall determine.

     Section 7.05 Financial Statements.

     (a) The Corporation shall furnish to the shareholders annual financial statements of the Corporation (and, if applicable, its subsidiaries) that include a balance sheet as of the end of the Corporation’s fiscal year, an income statement for the year then ended and a statement of changes in shareholders’ equity for the year then ended, unless that information appears elsewhere in the financial statements. Such financial statements shall be prepared in

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accordance with generally accepted accounting principles if financial statements are prepared for the Corporation on that basis. If such financial statements are reported on by a certified public accountant, such report shall accompany such financial statements. If such financial statements are not reported on by a certified public accountant, such financial statements shall be accompanied by a statement of the executive chairman, president or the person responsible for the Corporation’s accounting records.

(i) Stating that person’s reasonable belief whether such financial statements were prepared on the basis of generally accepted accounting principles and, if not, describing the bases of preparation; and

(ii) Describing any respects in which such financial statements were not prepared on a basis of accounting consistent with the prior years’ financial statements.

Such financial statements shall be mailed to each shareholder within one hundred and twenty (120) days after the end of the Corporation’s fiscal year. On written request from a shareholder, the Corporation shall mail that shareholder the latest annual financial statements.

     (b) If the Corporation indemnifies or advances expenses to a director pursuant to the BCA, the Corporation shall report the indemnification or advance in writing to the shareholders with or before the annual financial statements required by Section 7.05(a) above. Failure to report under this section does not invalidate otherwise valid indemnification.

     Section 7.06 Corporate Records.

     (a) There shall be kept at the Corporation’s known place of business or at the office of an agent an original or duplicate record of:

(i) The articles of incorporation (as amended);

(ii) The bylaws (as amended);

(iii) Resolutions adopted by the board of directors creating one or more classes or series of shares and fixing their relative rights, preferences and limitations, if shares issued pursuant to those resolutions are outstanding;

(iv) Minutes of all shareholders’ meetings and records of all action taken by shareholders without a meeting, for the past three years;

(v) All written communication to shareholders generally within the past three years, including financial statements furnished within such period;

(vi) A list of the names and business addresses of the Corporation’s current directors and officers;

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(vii) The most recent annual report delivered to the Arizona Corporation Commission; and

(viii) Any agreement among shareholders pursuant to Section 10-732 of the BCA.

     (b) The Corporation shall maintain appropriate accounting records.

     (c) All corporate records shall be in written form, or another form capable of conversion into written form within a reasonable period of time.

     (d) Any shareholder who shall have been a holder of record of shares or of a voting trust beneficial interest therefor at least six (6) months immediately preceding a demand, or will be the holder of record of, or the holder of record of a voting trust beneficial interest for, at least five percent (5%) of all the outstanding shares of the Corporation, upon five (5) business days’ written demand directed to the Corporation, is entitled to inspect and copy, during regular business hours, at the Corporation’s principal office, the Corporation’s books and records set forth in section 8.06(a).

     (e) Any shareholder who shall have been a holder of record of shares or of a voting trust beneficial interest therefor at least six (6) months immediately preceding its demand, or will be the holder of record of, or the holder of record of a voting trust beneficial interest for, at least five percent (5%) of all the outstanding shares of the Corporation, upon five (5) business days’ written demand directed to the Corporation, is entitled to inspect and copy, during regular business hours, at the principal office of the Corporation, the following books and records of the Corporation.

(i) Excerpts from minutes of any meeting of the board of directors, records of any action of committees, minutes of any shareholders’ meetings and records of action taken by the shareholders or board of directors without a meeting, to the extent not subject to inspection in accordance with section 8.06(e);

(ii) Accounting records of the Corporation;

(iii) The record of shareholders; and

(iv) The Corporation’s most recent financial statements showing in reasonable detail its assets and liabilities and the results of its operations.

If such shareholder’s demand is made in good faith and for a proper purpose, such shareholder describes with reasonable particularity its purpose and the records it desires to inspect and the records are directly connected with the shareholder’s purpose.

     (g) A shareholder’s agent or attorney shall have the same inspection and copying rights as the shareholder he or she represents.

     (h) The Corporation may impose a reasonable charge to cover the costs of

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labor and material for copies of documents provided to such shareholder, which charge shall not exceed the estimated cost of production or reproduction of the records.

     Section 7.07 Voting Securities Held by the Corporation. Unless otherwise ordered by the board of directors, the executive chairman shall have full power and authority on behalf of the Corporation to attend and at act and to vote at any meeting of security holders of other corporations to which the Corporation may hold securities. At such meeting the executive chairman shall possess and may exercise any and all rights and powers incident to the ownership of such securities which the Corporation might have possessed and exercised if it had been present. The board of directors from time to time may confer similar powers upon any other person or persons.

     Section 7.08 Amendment of Bylaws.

     (a) Except as may otherwise be provided in the articles of incorporation or the BCA these bylaws may be amended or repealed by the board of directors of the Corporation at any regular or special meeting of directors, subject to the shareholders, in amending or repealing a particular bylaw expressly providing that the board of directors may not amend or repeal that bylaw. The shareholders of the Corporation may amend or repeal these bylaws even though the bylaws may also be amended or repealed by the board of directors.

     (b) Bylaw provisions that require super majority voting to effectuate shareholder or director action shall only be amended in accordance with Sections 10-1021 and 10-1022 of the BCA.

CERTIFICATION

     I hereby certify that the foregoing bylaws were duly adopted by the board of directors of the Corporation as of the 22nd day of August.

/s/ David Riddiford

David Riddiford, Secretary 

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EX-10.1

Exhibit 10.1

EMPLOYMENT AGREEMENT

     Employment Agreement effective as of the 15th day of August, 2005, by and between Action Performance Companies, Inc., an Arizona corporation (“Employer”) and Herbert M. Baum (“Executive”). For purposes of paragraphs 8, 9, and 10 of this Agreement, the term “Employer” shall include each of Employer’s subsidiaries and operating divisions.

WITNESSETH:

     Employer desires to employ Executive, and Executive desires to accept such employment, all on the terms and conditions hereinafter set forth.

     NOW, THEREFORE, in consideration of the premises and of the mutual covenants set forth in this Agreement, the parties hereto agree as follows:

     1. Position and Duties. Executive shall be employed as the Executive Chairman of Employer and shall report only to the Board of Directors of Employer (the “Board”). It is anticipated that Executive will have primary responsibility for: (1) dealing with the financial community, (2) analyzing strategic alternatives, and (3) supervising the management team. Executive shall serve Employer faithfully, loyally, honestly, and to the best of his ability. Executive shall spend the equivalent of one week per month at Employer facilities and will be available daily from his residence or other location during regular business hours for consultation with other senior executives. This Agreement, however, shall not preclude Executive from (a) serving on the board of directors of not more than five other companies (that do not compete with Employer), (b) serve on the governing body of a reasonable number of trade associations or charitable organizations, (c) engaging in charitable activities and community affairs, and (d) managing his personal investments and affairs, provided that such activities do not conflict or materially interfere with the effective discharge of his duties and responsibilities to Employer and to the extent Employer does not reasonably object to any service by Executive on behalf of any such third party.

     2. Term of Employment. The term of Executive’s employment hereunder shall commence on the date hereof and shall continue until December 31, 2007 (the “Initial Term”) and from year to year thereafter (each a “Renewal Term”), unless and until terminated by either party giving written notice to the other not less than sixty (60) days prior to the end of the then current term, unless earlier terminated under the terms of this Agreement.

     3. Compensation and Other Benefits.

          (a) Base Salary. Employer shall pay to Executive a base salary at a rate of One Hundred Eighty Thousand Dollars ($180,000) per annum to be paid in equal monthly installments, or in such other periodic installments upon which Employer and Executive shall mutually agree. On at least an annual basis, the Compensation Committee of the Board shall review Executive’s base salary and may increase but not decrease Executive’s base salary in the committee’s discretion.

          (b) Stock Options. Employer will grant to Executive options to acquire 100,000 shares of Employer’s common stock at an exercise price equal to the closing market

price of Action Performance Companies, Inc. on the effective date of this Agreement. Such option grant will be subject to the specific terms and conditions with respect to vesting and other matters as set forth in a separate stock option agreement to be entered into between Employer and Executive.

          (c) Benefit Plans. Executive shall be entitled to participate in any benefit plans maintained by Employer, including, but not limited to, retirement plans, disability plans, life insurance plans, and health and dental plans available to other executive employees of Employer, subject to any restrictions, including waiting periods, specified in the plans.

          (d) Other Benefits. Executive shall also receive (i) reimbursement for reasonable annual tax and financial consulting fees, (ii) reimbursement for the costs of an annual physical by the doctor of his choice, and (iii) reimbursement for reasonable legal and accounting fees and expenses incurred by Executive in connection with this Agreement, all of which shall be subject to a gross up, which means that Executive will receive an additional payment in an amount such that after Executive’s payment of taxes on that additional payment, a sufficient sum remains to pay Executive’s tax liability resulting from such reimbursement.

          (e) Vacations. Executive shall also be entitled to four (4) weeks of paid vacation each calendar year, with such vacations to be scheduled and taken by Executive in his discretion, provided no such vacation shall interfere with the performance of Executive’s duties hereunder and no unused vacation may be carried over to a succeeding calendar year.

          (f) Business Expenses. Employer shall reimburse Executive for any and all necessary, customary, and usual expenses, properly receipted in accordance with Employer’s policies, incurred by Executive on behalf of Employer. If Executive is required to travel in the performance of his duties under this Agreement, Executive shall be entitled to use any plane maintained by Employer or to fly first class on commercial flights at his election at Employer’s cost. Employer shall also reimburse Executive for hotels and meals relating to his service to Employer.

          (g) Signing Bonus. Upon execution of this Agreement by Employee and Executive, Executive will be entitled to a signing bonus of $7,000.00, less applicable withholding taxes.

     4. Termination by Employer.

          (a) Termination for Cause. Employer may terminate Executive’s employment under this Agreement for Cause at any time upon written notice to Executive. For purposes of this Agreement, “Cause” shall be limited to discharge resulting from a determination by the Board that Executive (i) has been convicted of a felony, involving dishonesty, fraud, theft, or embezzlement; (ii) has repeatedly failed or refused, after written notice from Employer along with failure of Executive to cure within thirty (30) days of receipt of such notice, in a material respect to follow reasonable policies or directives established by Employer; (iii) has willfully and persistently failed, after written notice from Employer within thirty (30) days of receipt of such notice, to attend to material duties or obligations imposed upon him under this Agreement; or (iv) has performed an act or failed to act for which if he were prosecuted and convicted, would

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constitute a felony involving One Thousand Dollars ($1,000) or more of money or property of Employer. The existence of “Cause” shall be determined by the Board acting in good faith after prior notice to Executive and after providing Executive with an opportunity to be heard. If Executive’s employment is terminated for Cause, Executive shall receive no Severance Benefits pursuant to paragraph 7.

          (b) Termination without Cause. Employer also may terminate Executive’s employment under this Agreement without Cause at any time upon written notice to Executive. In the event Executive’s employment is terminated by Employer without Cause, Executive shall receive the Severance Benefits pursuant to paragraph 7.

     5. Termination by Executive. Executive may terminate his employment under this Agreement with or without “Good Reason” in accordance with the provisions of this paragraph 5.

          (a) Termination for Good Reason. Executive may terminate his employment under this Agreement for “Good Reason” by giving written notice to Employer within sixty (60) days, or such longer period as may be agreed to in writing by Employer, of Executive’s receipt of notice of the occurrence of any event constituting “Good Reason,” as described below. Executive shall have “Good Reason” to terminate his employment under this Agreement upon the occurrence of any of the following events:

               (i) Any reduction in Executive’s status, duties, authority, or compensation;

               (ii) Executive is demoted to a position of less stature or importance within Employer than the position described in paragraph 1;

               (iii) Executive is assigned duties inconsistent with the positions, duties, responsibilities, or status of the Executive Chairman of Employer;

               (iv) Upon an event of a “Change of Control” of Employer, provided that a change of control shall not be considered to have taken place for purposes of this Agreement in the event the Change of Control shall have been specifically approved by the Board and the provisions of this Agreement remain in full force and effect as to Executive and Executive suffers no reduction in Executive’s status, duties, authority, or compensation.

          (b) Change of Control. For the purposes of this paragraph 5, the term “Change in Control” of Employer shall mean a Change in Control of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934 as in effect on the date of this Agreement or, if Item 6(e) is no longer in effect, any regulations issued by the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934 that serve similar purposes; provided that, without limitation, such a Change in Control shall be deemed to have occurred if and when

               (i) any person (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934) directly or indirectly of equity securities of

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Employer representing thirty percent (30%) or more of the combined voting power of Employer’s then-outstanding equity securities;

               (ii) during the term of this Agreement, individuals who, at the beginning of such period, constituted the Board of Directors of Employer (the “Original Directors”), cease for any reason to constitute at least a majority thereof unless the election or nomination for election of each new director was approved (an “Approved Director”) by the unanimous vote of the Board constituted entirely of Existing Directors and/or Approved Directors;

               (iii) a tender offer or exchange offer is made whereby the effect of such offer is to take over and control Employer, and such offer is consummated for the equity securities of Employer representing twenty percent (20%) or more of the combined voting power of Employer’s then-outstanding voting securities;

               (iv) Employer is merged, consolidated, or enters into a reorganization transaction with another person and, as the result of such merger, consolidation, or reorganization, less than 75 percent (75%) of the outstanding equity securities of the surviving, or resulting person shall then be owned in the aggregate by the former stockholders of Employer; or

               (v) Employer transfers substantially all of its assets to another person or entity which is not a wholly owned subsidiary of Employer.

If Executive terminates this Agreement and his employment for Good Reason, Executive shall be entitled to receive Severance Benefits pursuant to paragraph 7.

          (c) Termination Without Good Reason. Executive also may terminate his employment without Good Reason at any time by giving written notice to Employer. If Executive terminates his employment under this Agreement without Good Reason, Executive shall not receive Severance Benefits pursuant to paragraph 7.

     6. Death or Disability.

          (a) Death. Executive’s employment shall terminate automatically on Executive’s death. Any compensation or other amounts due to Executive for services rendered prior to his death shall be paid to Executive’s surviving spouse, or if Executive does not leave a surviving spouse, to Executive’s estate. No other benefits shall be payable to Executive’s heirs pursuant to this Agreement, but amounts may be payable pursuant to any life insurance or other benefit plans maintained by Employer.

          (b) Disability. In the event Executive becomes “Disabled,” Executive’s employment hereunder and Employer’s obligation to pay Executive’s Base Salary shall continue for a period of twelve (12) months from the date of Executive’s initial absence due to such Disability and, in the event Executive becomes “Disabled” during the first year of his employment with Employer. Executive shall also receive any additional compensation to which Executive may be entitled pursuant to paragraph 3 (less any amounts payable to Executive pursuant to any long-term disability insurance policy paid for by Employer). If at the end of the

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twelve (12) month period, Executive has not recovered from such Disability, Executive’s employment hereunder shall automatically cease and terminate. Executive shall be considered “Disabled” or to be suffering from a “Disability” for purposes of this paragraph 6(b) if, in the judgment of a licensed physician selected by the Board and confirmed by a licensed physician designated by Executive, and after any reasonable accommodations required by applicable law, he is unable to perform the essential functions of his position due to a physical or mental impairment, and such incapacity is expected to continue for a period of at least twelve (12) consecutive months from the date of the initial absence due to such incapacity. The determination by such physicians shall be binding and conclusive for all purposes. If the physician selected by the Board and the physician selected by Executive cannot agree, the two (2) physicians shall select a third (3rd) physician. The decision of the third (3rd) physician concerning Executive’s Disability then shall be binding and conclusive on all interested parties.

     7. Severance Benefits. If during the Initial Term or any Renewal Term, Executive’s employment under this Agreement is terminated without Cause by Employer pursuant to paragraph 4(b) prior to the last day of the Initial Term or any Renewal Term, or if Executive elects to terminate his employment for Good Reason pursuant to paragraph 5(a), Executive shall receive the “Severance Benefits” provided by this paragraph. In addition, Executive also shall receive the Severance Benefits if his employment is terminated due to Disability pursuant to paragraph 6(b).

          (a) Effective Date. The Severance Benefits shall begin immediately following the effective date of termination of employment and shall continue to be payable for a period of twenty four months (24) following the effective date, in all events except as set forth in paragraph 6(b).

          (b) Benefits. The Executive’s Severance Benefits shall consist of two (2) times the Executive’s then base salary and bonus compensation. The Company will pay this amount to Executive in a lump sum, within 10 days of termination. Executive’s bonus compensation shall be the greater of (i) the amount paid to him as bonus or incentive compensation for the prior year, and (ii) an amount estimated to be due him under any then current bonus program. By way of example, if Executive was paid a bonus of $100,000 for the prior year, and is estimated to earn a $60,000 bonus in the year of termination, he would be paid $200,000 as his bonus payout upon termination. The Severance shall also consist of the continuation for two (2) years of any health, life, disability, or other insurance benefits that Executive was receiving as of the Change of Control date, but only to the extent permitted under the policies for such benefits. If a particular insurance benefit may not be continued for any reason, Employer shall pay to the Executive in a lump sum an amount estimated in good faith for him to obtain comparable coverage for the two (2) year post-termination period. Notwithstanding the above, at all times under the terms of this Section 7(b), the cash portion of the Executive’s Severance Benefit shall be paid no later than the date that is two and one-half months after the end of the later of (i) the Employer’s fiscal year, or (ii) the calendar year, in which the payments are no longer subject to a substantial risk of forfeiture, as determined in accordance with the guidance promulgated under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”).

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          (c) Exceptions to Benefits. If Executive voluntarily terminates this Agreement and his employment without Good Reason prior to the end of the Initial Term or any Renewal Term, or if Employer terminates the Agreement and Executive’s employment for Cause, no Severance Benefits shall be paid to Executive. No Severance Benefits are payable in the event of Executive’s death while in the active employ of Employer.

          (d) Future Employment. The payment of Severance Benefits shall not be affected by whether Executive seeks or obtains other employment. Executive shall have no obligation to seek or obtain other employment, and Executive’s Severance Benefits shall not be impacted by Executive’s failure to mitigate.

     8. Covenant-Not-to-Compete.

          (a) Interests to be Protected.

               (i) Customers. The parties acknowledge that during the term of his employment under this Agreement, Executive will perform essential services for Employer, its employees, and shareholders, and for customers of Employer. Therefore, Executive will be given an opportunity to meet, work with, and develop close working relationships with Employer’s customers on a first-hand basis and will gain valuable insight as to the customers’ operations, personnel, and need for services. In addition, Executive will be exposed to, have access to, and be required to work with, a considerable amount of Employer’s Confidential and Proprietary Information.

               (ii) Employees. The parties also expressly recognize and acknowledge that the personnel of Employer have been trained by, and are valuable to Employer, and that if Employer must hire new personnel or retrain existing personnel to fill vacancies it will incur substantial expense in recruiting and training such personnel. The parties expressly recognize that should Executive compete with Employer in any manner whatsoever, it could seriously impair the goodwill and diminish the value of Employer’s business.

               (iii) Extended Duration. The parties acknowledge that this covenant has an extended duration; however, they agree that this covenant is reasonable and it is necessary for the protection of Employer, its shareholders and employees.

               (iv) Fair and Reasonable. For these and other reasons, and the fact that there are many other employment opportunities available to Executive if his employment with Employer should terminate, the parties are in full and complete agreement that the following restrictive covenants (which together are referred to as the “Covenant-Not-To-Compete”) are fair and reasonable and are freely, voluntarily, and knowingly entered into. Further, each party has been given the opportunity to consult with independent legal counsel before entering into this Agreement.

          (b) Devotion to Employment. Executive shall devote substantially all his business time and efforts to the performance of his duties on behalf of Employer during the term of his employment under this Agreement. During his term of employment, Executive shall not at any time or place or to any extent whatsoever, either directly or indirectly, without the express written consent of Employer, engage in any outside employment, or in any activity competitive

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with or adverse to Employer’s business or affairs, whether alone or as partner, officer, director, employee, shareholder of any corporation or as a trustee, fiduciary, consultant or other representative. This is not intended to prohibit Executive from engaging in nonprofessional activities, such as personal investments or conducting to a reasonable extent private business affairs, which may include other boards of directors’ activity, so long as they do not conflict with Employer’s business. Participation to a reasonable extent in civic, social, or community activities is encouraged.

          (c) Non-Solicitation of Customers. During the term of Executive’s employment with Employer under this Agreement and for a period of twenty-four (24) months after the termination of employment with Employer under this Agreement, regardless of who initiates the termination and for whatever reason, Executive shall not directly or indirectly, for himself, or on behalf of, or in conjunction with, any other person, company, partnership, corporation, or governmental entity, in any manner whatsoever, call upon, contact, encourage, handle, or solicit customers of Employer with whom he has worked as an employee of Employer at any time prior to termination, or at the time of termination, for the purpose of soliciting or selling such customer the same, similar, or related services that he provided on behalf of Employer.

          (d) Non-Solicitation of Executives. During the term of Executive’s employment with Employer under this Agreement and for a period of twenty-four (24) months after the termination of employment with Employer under this Agreement, regardless of who initiates the termination and for whatever reason, Executive shall not directly or indirectly, for himself, or on behalf of, or in conjunction with, any other person, company, partnership, corporation, or governmental entity, seek to hire, and/or hire any of Employer’s personnel or employees for the purpose of having such employee engage in services that are the same, similar, or related to the services that such employee provided for Employer.

          (e) Competing Business. During the term of Executive’s employment with Employer under this Agreement and for a period of twenty-four (24) months after the termination of employment with Employer under this Agreement, regardless of who initiates the termination and for whatever reason, Executive shall not, directly or indirectly, for himself, or on behalf of, or in conjunction with, any other person, company, partnership, corporation, or governmental entity, in any manner whatsoever, engage in the same or similar business as Employer, which would be in direct competition with any Employer line of business, in any geographical service area where Employer engaged in business at time of termination. For the purposes of this provision, the term “competition” shall mean directly or indirectly engaging in or having a substantial interest in a business or operation which has been, is, or will be, providing the same products provided by Employer; provided, however the ownership of not more than 5% by Executive of a publicly held corporation shall not constitute competition which is prohibited by this paragraph 8(e).

          (f) Limitation and Judicial Amendment. Notwithstanding any other provision of this Agreement, the provisions contained in paragraphs 8(c), 8(d), and 8(e) shall not apply for more than twelve (12) months after Executive no longer receives Severance Benefits under this Agreement. If the scope of any provision of this Agreement is found by the Court to be too broad to permit enforcement to its full extent, then such provision shall be enforced to the

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maximum extent permitted by law. The parties agree that the scope of any provision of this Agreement may be modified by a judge in any proceeding to enforce this Agreement, so that such provision can be enforced to the maximum extent permitted by law. If any provision of this Agreement is found to be invalid or unenforceable for any reason, it shall not affect the validity of the remaining provisions of this Agreement.

          (g) Injunctive Relief, Damages and Forfeiture. Due to the nature of Executive’s position with Employer, and with full realization that a violation of this Agreement will cause immediate and irreparable injury and damage, which is not readily measurable, and to protect Employer’s interests, Executive understands and agrees that in addition to instituting legal proceedings to recover damages resulting from a breach of this Agreement, Employer may seek to enforce this Agreement with an action for injunctive relief, to cease or prevent any actual or threatened violation of this Agreement on the part of Executive.

          (h) Survival. The provisions of this paragraph shall survive the termination of Executive’s employment to the extent necessary to enforce such provisions.

     9. Confidential Information. During the course of his employment under this Agreement, Executive will become exposed to a substantial amount of confidential and proprietary information, including, but not limited to, financial information, annual reports, audited and unaudited financial reports, operational budgets and strategies, methods of operation, customer lists, strategic plans, business plans, marketing plans and strategies, new business strategies, merger and acquisition strategies, management systems programs, computer systems, personnel and compensation information and payroll data, and other such reports, documents, or information (collectively the “Confidential and Proprietary Information”). In the event his employment is terminated by either party for any reason, Executive agrees that he will not take with him any copies of such Confidential and Proprietary Information in any form, format, or manner whatsoever (including computer print-outs, computer tapes, floppy disks, and CD roms) nor will he disclose the same in whole or in part to any person or entity, in any manner either directly or indirectly. Excluded from this Agreement is information that is already disclosed to third parties and is in the public domain or that Employer consents to be disclosed, with such consent to be in writing. The provisions of this paragraph shall survive the termination of this Agreement.

     10. Indemnity by Employer.

          (a) Generally. Unless Executive is covered by an indemnity agreement covering the directors and executive officers of Employer, Employer shall indemnify Executive to the fullest extent permitted or required by the laws of the state of Arizona of and from any “Expenses” incurred by Executive in any “Proceeding.”

          (b) Expenses. For purposes of this paragraph 10, “Expenses” shall mean and include all expense, liability, and loss, including expenses of investigations, judicial or administrative proceedings or appeals, attorney, accountant and other professional fees and disbursements, judgments, fines, and amounts paid in settlement.

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          (c) Proceeding. For purposes of this paragraph 10, “Proceeding” shall mean and include any threatened, pending, or completed action, suit, or proceeding, whether brought in the right of Employer or otherwise, and whether of a civil, criminal, administrative, or investigative nature, in which the Executive may be or may have been involved as a party, witness or otherwise, by reason of the fact that the Executive is or was an officer of Employer or is or was serving at the request of Employer as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification may be provided under this Agreement.

          (d) Payment of Executive Expenses. Employer shall pay the Expenses incurred by Executive in any Proceeding in advance of the final disposition of the Proceeding at the written request of Executive, if Executive (i) furnishes Employer with a written affirmation of Executive’s good faith belief that he is entitled to indemnification by Employer; and (ii) furnishes Employer with a written undertaking to repay the advance to the extent that it is ultimately determined that Executive is not entitled to be indemnified by Employer. Such undertaking shall be an unlimited general obligation of Executive, but need not be secured. Advances pursuant to this paragraph 10 shall be made no later than twenty (20) days after Employer’s receipt of the affirmation and undertakings set forth above and shall be made without regard to the Executive’s ability to repay the amount advanced and without regard to Executive’s ultimate entitlement to indemnification under this Agreement.

     11. Miscellaneous.

          (a) Notices. All notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given upon (a) personal delivery, (b) transmitter’s confirmation of the receipt of a facsimile or e-mail transmission, (c) confirmed delivery by a standard overnight carrier, or (d) the expiration of three business days after the day when mailed via United States Postal Service by certified or registered mail, return receipt requested, postage prepaid at the following addresses:

               (i) If to Employer:

Action Performance Companies, Inc.
1480 South Hohokam Avenue
Tempe, Arizona 85281
Attention: Chief Financial Officer

               (ii) If to Executive:

1480 South Hohokam Avenue
Tempe, Arizona 85281

     Either party may alter the address to which communications are to be sent by giving notice of such change of address in conformity with the provisions of this paragraph for the giving of notice.

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          (b) Indulgences. Neither any failure nor any delay on the part of either party to exercise any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege preclude any other or further exercise of the same or of any other right, remedy, power, or privilege, nor shall any waiver of any right, remedy, power, or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power, or privilege with respect to any other occurrence.

          (c) Controlling Law. This Agreement and all questions relating to its validity, interpretation, performance, and enforcement, shall be governed by and construed in accordance with the laws of the state of Arizona, notwithstanding any Arizona or other conflict-of-interest provisions to the contrary.

          (d) Binding Nature of Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors, and permitted assigns.

          (e) Execution in Counterpart. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. This Agreement shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of the parties reflected hereon as the signatories.

          (f) Provisions Separable. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.

          (g) Entire Agreement. This Agreement contains the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, inducements, and conditions, express or implied, oral or written, except as herein contained. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. This Agreement may not be modified or amended other than by an agreement in writing.

          (h) Paragraph Headings. The paragraph headings in this Agreement are for convenience only; they form no part of this Agreement and shall not affect its interpretation.

          (i) Number of Days. In computing the number of days for purposes of this Agreement, all days shall be counted, including Saturdays, Sundays, and holidays; provided, however, that if the final day of any time period falls on a Saturday, Sunday, or holiday, then the final day shall be deemed to be the next day which is not a Saturday, Sunday, or holiday.

          (j) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto; provided that because the obligations of Executive hereunder involve the performance of personal services, such obligations shall not be delegated by Executive. For purposes of this Agreement, successors and

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assigns shall include, but not be limited to, any individual, corporation, trust, partnership, or other entity that acquires a majority of the stock or assets of Employer by sale, merger, consolidation, liquidation, or other form of transfer. Employer shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business and/or assets of Employer to expressly assume and agree to perform this Agreement in the same manner and to the same extent that Employer would be required to perform it if no such succession had taken place. Without limiting the foregoing, unless the context otherwise requires, the term “Employer” includes all subsidiaries of Employer.

          (k) Code Section 409A. If any payments under this Agreement are subject to the provisions of Code Section 409A, it is intended that the Agreement will comply fully with and meet all the requirements of Code Section 409A.

     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

EMPLOYER:
ACTION PERFORMANCE COMPANIES, INC.,
an Arizona corporation
By:	/s/ David Riddiford
Name:	David Riddiford
Its:	Chief Financial Officer
EXECUTIVE:
/s/ Herbert M. Baum
Herbert M. Baum

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